Rivera v Minister for Justice and Customs

Federal Court of Australia (Full Court)|1974-05-14|Before: Buchanan JJ, Emmett J

EMMETT J: 1 The appellant, Lawrence John Rivera, is a citizen of the United States of America. He arrived in Australia on about 22 May 2002. However, on 31 August 2006 the respondent, the Minister for Justice and Customs (the Minister), determined, under s 22(2) of the Extradition Act 1988 (Cth) (the Act), that Mr Rivera be surrendered to the United States in relation to the extradition offence of murder. Accordingly, the Minister signed a surrender warrant under s 23 of the Act, in respect of Mr Rivera. 2 Thereafter, Mr Rivera commenced a proceeding in the Court seeking judicial review of the Minister's decision, claiming, relevantly, a declaration that the warrant is a nullity and an order setting it aside. On 21 December 2006, a judge of the Court ordered that Mr Rivera's application be dismissed with costs. On 22 December 2006, Mr Rivera filed a notice of appeal from the orders of the primary judge. Mr Rivera's grounds of appeal, in substance, are that the primary judge erred in rejecting all of the grounds of his initial application for judicial review. The grounds of review are outlined below. First, it is desirable to explain the process under the Act.

THE EXTRADITION PROCESS 3 Section 12 of the Act provides that a magistrate of a State must, in certain circumstances, issue a warrant for the arrest of a person who is an extraditable person. Such a warrant is described in the Act as a provisional arrest warrant. Under s 6 of the Act, where: · a warrant is in force for the arrest of a person in relation to an offence against the law of a country; · the offence is an extradition offence in relation to that country; and · the person is outside that country, the person is an extraditable person. Murder is an extradition offence in relation to the United States of America. 4 Under s 12(2) of the Act, a magistrate who issues a provisional arrest warrant must send to the Attorney-General a report stating that such a warrant has been issued. Under s 15, a person who is arrested under a provisional arrest warrant must be brought as soon as practicable before a magistrate in the State where the person was arrested for proceedings under s 18 or s 19 of the Act to be conducted. 5 Under s 18, the person may inform the magistrate that he or she consents to being surrendered. So long as the magistrate believes that the consent was given voluntarily, the magistrate must advise the Attorney-General of the offence in respect of which the person has consented to be surrendered. Section 18 has no present relevance. 6 Where an application is made for proceedings to be conducted under s 19, the magistrate must conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence for which surrender is sought by the extradition country. Under s 19(9), where the magistrate determines that the person is eligible for surrender to the extradition country in relation to the extradition offence, the magistrate must order that the person be committed to prison to await surrender under a surrender warrant. 7 By felony complaint filed in the Superior Court of California on 28 May 2002 (the Complaint), Mr Rivera was charged with the murder, on or about 15 May 2002, of Kristina Louise Garcia (the Victim), contrary to the California Penal Code (the Penal Code). On 16 December 2002, a New South Wales magistrate determined under s 19 that Mr Rivera was eligible for extradition to the United States in respect of the offence of murder charged in the Complaint. Mr Rivera applied for review of that determination by the Supreme Court of New South Wales. However, on 28 November 2003 his application was dismissed. An appeal from that dismissal to the Full Court of the Federal Court was dismissed on 16 June 2004. On 10 December 2004, the High Court refused Mr Rivera's application for special leave to appeal from the decision of the Full Court. Accordingly, Mr Rivera is an eligible person within the meaning of s 22 of the Act. 8 Under s 22(2) of the Act, as soon as is reasonably practicable after a person becomes an eligible person, the Minister must determine whether the person is to be surrendered in relation to the extradition offence for which the magistrate determined under s 19 that the person was eligible for surrender. It is the decision of the Minister under s 22(2) in relation to Mr Rivera that is in issue in this appeal. 9 Section 22(3) of the Act provides that an eligible person is only to be surrendered in relation to the relevant extradition offence if the prerequisites set out in s 22(3) are satisfied. The first prerequisite is that the Minister must be satisfied that there is no extradition objection in relation to the relevant extradition offence. Under s 7, there is an extradition objection in relation to an extradition offence if: (a) the extradition offence is a political offence; (b) the surrender of the person is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, religion, nationality or political opinions or for a political offence; (c) the person may be prejudiced at his or her trial by reason of his or her race, religion, nationality or political opinions; (d) assuming that the conduct constituting the extradition offence had taken place in Australia, that conduct would have constituted an offence under the military law, but not also under the ordinary criminal law, of Australia; or (e) the person has been acquitted or pardoned by a competent tribunal or authority in respect of the extradition offence. 10 Secondly, under s 22(3)(b), the Minister must be satisfied that, on surrender to the extradition country, the person will not be subjected to torture. Under the Convention Against Torture and other Cruel, Inhuman or other Degrading Treatment or Punishment (the Torture Convention), to which Australia is a party, torture is defined as an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining information or a confession, punishing for an act committed or suspected of having been committed, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. However, torture under the Torture Convention does not include pain or suffering arising from, inherent in, or incidental to, lawful sanctions; nor does it refer to occasional and unpredictable violence occurring in prisons, even with the connivance of corrupt prison authorities. Rather, it refers only to institutionalised torture by government authorities (de Bruyn v Ellison [2004] FCA 880). 11 The third prerequisite, under s 22(3)(c), is that, where the extradition offence is punishable by a penalty of death, one of the following must be applicable, by virtue of an undertaking given to Australia by the extradition country: · the person will not be tried for the offence; · if the person is tried for the offence, the death penalty will not be imposed; · if the death penalty is imposed, it will not be carried out. 12 Fourthly, under s 22(3)(d), the extradition country must have given a speciality assurance in relation to the person. Under s 22(4), an extradition country will be taken to have given a speciality assurance in relation to the eligible person if, relevantly, by virtue of a provision of the extradition treaty in relation to that country, the eligible person will not be tried for an offence that is alleged to have been committed, or was committed, before the eligible person was surrendered, other than the surrender offence. Under Art XIV(1) of the Treaty on Extradition between Australia and the United States of America (the United States Treaty), a person extradited may be detained, tried or punished in the territory of the requesting State for any offence mentioned in Art II, which includes murder, for which the person could be convicted upon proof of the facts upon which the request for extradition is based. However, under Art XIV a person extradited under the Treaty may not be detained, tried or punished in the territory of the requesting State for any offence other than that for which extradition has been granted, unless he has left the territory of the requesting State after his extradition and has voluntarily returned to it or has not left the territory of the requesting State within 15 days after being free to do so. 13 Fifthly, under s 22(3)(e) of the Act, where the Act applies in relation to the extradition country subject to a limitation condition, qualification or exception that has the effect that surrender must or may be refused in certain circumstances, the Minister must be satisfied that the circumstances do not exist or that surrender should not be refused. 14 Finally, under s 22(3)(f), the Minister must consider that the person should be surrendered in relation to the offence. Thus, the Minister has a general discretion whether to surrender an eligible person or not. The discretion is unfettered and the Minister may, in the exercise of the discretion, take into account any matters, or no matters, provided that the discretion is exercised in good faith and consistently with the objects, scope and purpose of the Act.

THE GROUNDS OF REVIEW 15 The grounds of review of the Minister's decision upon which Mr Rivera relies may be summarised as follows: (1) The Minister was wrong in determining that Mr Rivera would not be prejudiced at his trial by reason of his race and religion: Mr Rivera claims that he would be prejudiced by reason of his Hispanic ethnicity and because of his Muslim religion. (2) The Minister was wrong in determining that Mr Rivera would not be subjected to torture: Mr Rivera claims that conditions in Californian prisons are such that he would be subjected to risks of harm that would amount to torture. (3) The Minister was wrong in determining that an assurance, purportedly given by the United States Embassy in Canberra on behalf of the United States, that the death penalty would not be sought or imposed against Mr Rivera, satisfies the requirements of s 22(3)(c). (4) The evidence before the Minister was incapable of supporting the Minister's decision. (5) The Minister erred in determining that the surrender of Mr Rivera would not be unjust, oppressive or incompatible with humanitarian considerations. (6) The extradition request by the United States was made in bad faith. (7) The Minister's decision was so unreasonable that no reasonable decision maker could have made the decision. (8) Mr Rivera was denied procedural fairness in connection with the making of the decision. (9) The Minister took into account irrelevant considerations and failed to take into account relevant considerations. (10) The Minister's decision was tainted by bias or would give rise to a reasonable apprehension of bias having regard to the conduct of certain departmental officers concerned with the matter. (11) Section 22 of the Act is beyond the power of the Commonwealth Parliament. 16 Mr Rivera provided the Court with extensive written submissions and, in addition, addressed orally at some length. The oral submissions were, for the most part, directed to the adequacy of an assurance from the United States Embassy concerning the application of the death penalty. However, Mr Rivera also touched upon other grounds. 17 Mr Rivera's written submissions were not directed expressly to the grounds enumerated above. However, in the course of oral argument, he indicated those parts of his submissions that were relied upon in support of identified grounds. The written submissions on behalf of the Minister provided the Court with considerable assistance in identifying those parts of Mr Rivera's submissions that appeared to be directed to particular grounds.

THE MINISTER'S DECISION 18 On 21 July 2006, an acting First Assistant Secretary of the Criminal Justice Division of the Attorney-General's Department made a recommendation to the Minister that he determine that Mr Rivera be surrendered to the United States and that the Minister sign and date a warrant for Mr Rivera's surrender. The recommendation was accompanied by a briefing paper (the Briefing Paper). The Briefing Paper outlined the background to the recommendation and explained the statutory context in which the Minister was required to make a determination, including the statutory prerequisites for the making of the determination. 19 A submission prepared by officers of the Minister's Department, which was attached to the Briefing Paper (the Departmental Submission), contained a detailed consideration of the statutory prerequisites and dealt with possible grounds for refusal of surrender under the Act. The Departmental Submission addressed the five extradition objections and the other prerequisites for surrender contained in s 22(3) of the Act. The Departmental Submission also addressed various issues raised by Mr Rivera in representations made by him to the Minister in opposition to his extradition. The Departmental Submission also summarised the response to Mr Rivera's representations received by the Minister from the United States.

REASONING ON THE APPEAL 20 Mr Rivera's contentions in relation to several of his grounds of review overlapped each other. It is convenient to deal with his submissions in relation to the various grounds of review under several heads as follows.

Prejudice at Trial because of Race or Religion: Ground (1) 21 The question of whether there was an applicable extradition objection based on Mr Rivera's race or religion was one of the matters required to be considered by the Minister. Mr Rivera claimed that he was of Hispanic ethnicity and Muslim religion and that Hispanics and Muslims are significantly under represented and systematically excluded from jury trials in the Barstow District of the County of San Bernadino, California, where his trial for the murder charged in the Complaint would ordinarily take place. His written submissions referred to detailed materials furnished by him to the Minister in support of his claim that he would not receive a fair trial. 22 The Departmental Submission summarised Mr Rivera's claims and the response from the United States to those claims. The Departmental Submission said that Mr Rivera's contention that he may be prejudiced was speculative and based on his personal assessment that persons of different racial and religious backgrounds will not act fairly in considering the evidence at a trial. The Departmental Submission also referred to several features of criminal prosecutions in California that were considered by the author of the Departmental Submission to provide an adequate degree of protection against the form of prejudice identified by Mr Rivera. 23 The jury selection process, which allows for peremptory challenge to jurors, includes a right to conduct a voir dire of potential jurors. Further, the right to an impartial jury is guaranteed by the United States Constitution and there is a right to petition the trial court for relief from apprehension of a partial jury. In addition, there is an ability to draw jurors from outside the Barstow community. Finally, there is a right to petition the Superior Court for a change of venue for the trial. 24 The Departmental Submission commented that Mr Rivera's representations did not demonstrate that racial attitudes were a regular or consistent feature of Californian criminal trials. The Departmental Submission said that, while Mr Rivera's representations indicated a continuing problem of racist and biased attitudes by some members of the Californian police against racial minorities, police officers do not control the conduct of a criminal trial and do not determine the punishment of a convicted criminal. 25 In essence, this ground invites the Court to reconsider the conclusion reached by the Minister that he was satisfied that the relevant extradition objection was not made out. The primary judge correctly held that the material before the Minister enabled him to be satisfied that the relevant extradition objection did not exist.

Torture and Humanitarian Considerations: Grounds (2) and (5) 26 Mr Rivera made the same submissions in support of both ground (2) and ground (5). His submissions proceeded on the erroneous assumption that there was a requirement for the Minister to take into account humanitarian considerations in exercising the power given by s 22. Nevertheless, the Departmental Submission took the approach that humanitarian considerations could be taken into account in deciding whether or not the Minister should exercise the residual discretion contained in s 22(3)(f) of the Act. 27 Both grounds were directed to prison conditions in California. Materials provided by Mr Rivera to the Minister indicate that prisoners in United States correctional facilities, including those in California, may be subjected to physical and sexual abuse and that the abuse may be perpetrated by prison guards and other prisoners on a frequent basis. Mr Rivera referred specifically to materials relating to the incidence of HIV and Hepatitis C diseases in Californian prisons. Those materials were specifically put before the Minister as attachments to the Briefing Paper. The Departmental Submission concluded that the materials do not establish that the conditions in the United States prisons are such that they should be regarded as cruel or inhumane or to involve degrading treatment or punishment. In short, they do not establish that the treatment of prisoners amounts to torture. The Minister appears to have accepted that conclusion. 28 The arguments advanced by Mr Rivera in relation to these grounds amount to an invitation to the Court to reach a different conclusion from the conclusion reached by the Minister on the basis of the materials placed before him. There was no reviewable error on the part of the Minister. As the primary judge held, it is not for the Court to determine whether Mr Rivera might be tortured; in any event, mistreatment or abuse in prison does not amount to torture. The conclusion of the Minister was open to him on the materials before him. There was no error.

The Death Penalty and Speciality: Ground (3) 29 Mr Rivera's arguments concerning the operation of s 22(3)(c) of the Act canvassed a number of issues, including the operation of the speciality requirement of s 22(3)(d). Before dealing with the arguments, it is necessary to say something about the California Penal Code (the Penal Code). 30 Section 189 of the Penal Code provides that certain kinds of murders constitute murder of the first degree and that all other kinds of murders are of the second degree. The murders of the first degree are as follows: · murders perpetrated by the methods specified in s 189; · murders perpetrated by any other kind of wilful, deliberate and premeditated killing; · murders committed in the perpetration of, or attempt to perpetrate, certain other named crimes, including kidnapping; · murders that are perpetrated by means of discharging a firearm from a motor vehicle. 31 Under s 190(a), every person guilty of murder in the first degree is to be punished by: · death; · imprisonment for life without the possibility of parole; or · imprisonment for a term of 25 years to life. The penalty to be applied in a particular case is to be determined as provided in ss 190.1, 190.2, 190.3, 190.4 and 190.5 of the Penal Code. 32 Section 190.1 relevantly provides that a case in which the death penalty may be imposed must be tried in separate phases. Under s 190.1(a) the question of the defendant's guilt is to be determined first. If the trier of fact finds the defendant guilty of first degree murder, it must at the same time determine the truth of all special circumstances charged as enumerated in s 190.2. Under 190.1(c), if the defendant is found guilty of first degree murder and one or more special circumstances as enumerated in s 190.2 has been charged and found to be true, his sanity on any plea of not guilty by reason of insanity is to be determined. If he is found to be sane, there are to be further proceedings on the question of the penalty to be imposed. Such proceedings are to be conducted in accordance with the provisions of sections 190.3 and 190.4. 33 Section 190.2(a) provides that the penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment for life without the possibility of parole if one or more of the special circumstances enumerated has been found under s 190.4 to be true. Notwithstanding Mr Rivera's contention to the contrary, it is clear that the special circumstances enumerated in s 190.2(a) do not coincide with the matters enumerated in s 189 that lead to a murder being characterised as being of the first degree. 34 Section 190.3 provides that, if the defendant has been found guilty of murder in the first degree, and a special circumstance has been charged and found to be true, the trier of fact must determine whether the penalty is to be death or confinement in a State prison for a term of life without the possibility of parole. In the proceedings on the question of penalty, evidence may be presented by both the prosecution and the defendant as to any matter relevant to aggravation, mitigation, and sentence including, but not limited to, the nature and circumstances of the offence, any prior conviction, whether or not such conviction involved a crime of violence, the presence or absence of other criminal activity by the defendant that involved the use or attempted use of force or violence and the defendant's character, background, history, mental condition and physical condition. 35 Section 190.4(a) of the Penal Code provides that, whenever special circumstances as enumerated in s 190.2 are alleged and the trier of fact finds the defendant guilty of first degree murder, the trier of fact must also make a special finding on the truth of each alleged special circumstance. The determination of the truth of any or all of the special circumstances is to be made on the evidence presented at the trial. 36 Section 1150 of the Penal Code provides that the jury must render a general verdict, except that in a felony case, when the jury is in doubt as to the legal effect of the facts proved, the jury may find a special verdict. Under s 1151, a general verdict upon a plea of not guilty is either "guilty" or "not guilty", which imports a conviction or acquittal of the offence charged. Under s 1152, a special verdict is that by which the jury finds the facts only, leaving the judgment to the Court. The jury must present the conclusions of fact as established by the evidence and such conclusions of fact must be so presented that nothing remains to the Court but to draw conclusions of law upon them. 37 Under s 1155, if the plea is not guilty and the facts prove the defendant guilty of the offence charged in the indictment or information, or of any other offence of which he could be convicted under that indictment or information, judgment must be given accordingly; if otherwise, judgment of acquittal must be given. Section 1157 provides that, whenever a defendant is convicted of a crime that is distinguished into degrees, the jury must find the degree of the crime of which he is guilty. If the jury does not so determine, the degree of the crime of which the defendant guilty is to be deemed of the lesser degree. 38 The highlighted phrases in the preceding paragraphs are of significance. Thus ss 190.1 to 190.4 of the Penal Code, have the effect that the death penalty can only be imposed for first degree murder, but cannot be imposed unless: · one of the special circumstances has been charged in the relevant complaint or information; · the trier of fact has made a special finding on the truth of that special circumstance; · the trier of fact has determined that the death penalty should be imposed. 39 The Complaint does not allege any of the special circumstances enumerated in s 190.2. In those circumstances, on the basis of the Complaint, Mr Rivera, if found guilty of the charge in the Complaint, would not be subject to the death penalty. Further, in the light of Art XIV of the United States Treaty, Mr Rivera may not be tried or punished for any offence other than the offence for which extradition has been granted, namely, murder as charged in the Complaint. That view is confirmed by assurances received by the Minister. 40 Mr Rivera says, however, that Art XIV of the United States Treaty would not be sufficient to prevent an amendment of the charge in the Complaint to include an allegation of special circumstances. He says that the provisions of Art XIV(2) refer only to the offence for which extradition has been granted and that the offence in question in the present case is that of murder in the first degree. Whether or not special circumstances are alleged, the offence of murder in the first degree is charged against him. He argues that amendment of the Complaint to allege special circumstances within s 190.2 would not involve the making of a charge other than that for which extradition would have been granted, if Mr Rivera is now surrendered pursuant to the warrant signed by the Minister. 41 There is some cogency in Mr Rivera's arguments in that regard. That is to say, it is by no means clear that, under the law of California, a charge of murder in the first degree is different from a charge of murder in the first degree with the allegation of special circumstances. That is to say, there is one offence consisting of murder in the first degree. 42 The Minister had before him several affidavits sworn by the San Bernadino County Deputy District Attorney responsible for the prosecution of Mr Rivera (the DA). In an affidavit sworn on 8 October 2002, the DA gave an assurance, purportedly pursuant to Art V of the United States Treaty, that the San Bernadino County District Attorney's Office would not seek or impose the death penalty on Mr Rivera. He explained that the charging document need not limit the degree of murder that a prosecutor may seek and referred to the two degrees of murder defined in s 189. He said that, based on the facts known to the District Attorney's Office, the Office would be seeking a first degree murder verdict from the jury for wilful, deliberate and premeditated murder. 43 In a supplemental affidavit sworn on 14 November 2002, the DA again referred to the ranges of punishment for murder under the Penal Code. He said, however, that a criminal defendant may only receive the death penalty after being charged with murder and with one or more special circumstances as defined in s 190.2(a) of the Penal Code. He said that a defendant must then be found guilty of murder in the first degree and that a true finding must be made as to one of the special circumstances: only after such findings may a jury decide whether a defendant should receive the death penalty. The DA then pointed out that no special circumstances are charged in the Complaint. The DA finished by saying that, since no special circumstances are charged in the Complaint, the only punishment options are 15 years to life in prison, for murder in the second degree, or 25 years to life in prison, for murder in the first degree. 44 The assurance given in the affidavits was repeated by letter of 28 September 2005 written by the then newly elected District Attorney of the County of San Bernadino. By that letter, the San Bernadino Country District Attorney's Office gave an assurance, again purportedly pursuant to Art V of the United States Treaty, that that Office would not seek to impose the death penalty on Mr Rivera. 45 Nevertheless, Mr Rivera contends that the absence of any allegation of special circumstances does not preclude a jury finding special circumstances, such that the death penalty could be imposed. First, Mr Rivera relies on those provisions of s 1155 of the Penal Code that refer to the possibility that the facts at a trial might prove that a defendant is guilty of the offence charged "in the indictment or information". Mr Rivera says that there may be information before a jury that would justify the jury finding him guilty of one of the special circumstances enumerated in s 190.2, even though not charged in the Complaint. 46 Mr Rivera's contention is based on a misapprehension. It is clear that the reference to "indictment or information" in s 1155 is a reference to the formal instrument of charge. Thus, s 951 of the Penal Code provides that "an indictment or information" may be in substantially the form set out in that section. That is to say, the references to "information" in s 1155 are clearly references to a formal instrument of charge. The only charge that has been made thus far against Mr Rivera involves no allegation of special circumstances. 47 The Briefing Paper observed that the offence of murder attracts the death penalty in California if there is an aggravating circumstance, for example, if the victim was kidnapped prior to being murdered. The Briefing Paper recorded that the DA had advised that there are no aggravating circumstances and that the case did not attract the death penalty. The Briefing Paper said, however, that, to put the matter beyond doubt, the United States had provided an "undertaking" that the death penalty would not be sought or imposed. 48 The undertaking, a copy of which was attached to the Briefing Paper, begins by referring to the diplomatic note requesting the extradition of Mr Rivera to stand trial on the charge of murder. The undertaking then says as follows: "The Deputy District Attorney for San Bernardino County… provided the information that the San Bernardino County District Attorney's office would not seek or impose the death penalty on Lawrence Rivera. The Deputy District Attorney provided an additional statement… which explained that the death penalty is not an available punishment for the charge filed against Lawrence Rivera and that the only possible punishments that would apply to Lawrence Rivera are 15 years to life in prison for the charge of murder in the second degree, or 25 years to life in prison for the charge of murder in the first degree. Based on the information provided by the Deputy District Attorney for San Bernardino County, and in accordance with Article VIII of the 1974 US-Australia Extradition Treaty… the United States government assures the government of Australia that the death penalty will not be sought or imposed on Lawrence Rivera." (Emphasis added). 49 The Minister relies on the assurances that have been given by the DA and the District Attorney's Office and the terms of the undertaking from the United States Embassy. Mr Rivera contends, nevertheless, that the assurance given by the DA and the District Attorney's Office is not binding because of provisions of the California State Constitution (the California Constitution) and that the undertaking given by the United States does not satisfy the requirements of s 22(3)(c). 50 Under Art III, Section 2 of the Constitution of the United States of America (the Constitution), the trial of all crimes is to be by jury and is to be held in the State where the crime is committed. Under Amendment X to the Constitution, the powers not delegated to the United States by the Constitution are reserved to the States respectively. Mr Rivera says that, therefore, the United States cannot speak for California in relation to the administration of the criminal law of California. In particular, Mr Rivera refers to s 27 of Art I of the Declaration of Rights in the California Constitution, which provides that all statutes of California requiring, authorising, imposing or relating to the death penalty are in full force and effect, subject to legislative amendment or appeal. 51 The Minister, however, points to Art VI of the United States Constitution, which provides that treaties made by the United States are part of the supreme Law of the Land and that judges in every State of the United States are bound thereby. Mr Rivera says, in response, citing decisions of the United States Supreme Court, that only a jury has the power to impose the death penalty. He says that there is nothing in Art VI of the Constitution that would bind a jury. 52 It would be a curious result, if it were correct, that a jury can make a determination beyond the supreme Law of the Land. A jury must be taken to be under the direction of the presiding judge. There is no reason to doubt that a treaty entered into by the United States would bind a jury to the same extent as it would bind a judge. 53 Mr Rivera also cited s 3.5 of Art III of the California Constitution, which provides that an administrative agency has no power to declare a statute unenforceable or refuse to enforce a statute on the basis of it being unconstitutional, unless an appellate court has made a determination to that effect and that an administrative agency has no power to declare a statute unenforceable or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination to that effect. Mr Rivera contends that the interaction between the California State Constitution and the United States Constitution is that no assurance given by the United States can bind California criminal law and that the DA, being an administrative agency, cannot refuse to enforce the Penal Code, which, on its proper construction, he says, would permit a jury to find special circumstances, thereby attracting the death penalty. 54 However, s 3.5 does not assist the contention. The assurances given by the DA have nothing to do with the Penal Code being unconstitutional or being a federal law or regulation prohibiting its enforcement. The assurances given by the DA and the District Attorney's Office are assurances given in the exercise of their powers as prosecuting authorities. There is nothing in the material to which Mr Rivera refers to indicate that it is beyond the power of the DA or the District Attorney's Office to give assurances that the District Attorney's Office would not seek to have the death penalty imposed on Mr Rivera. 55 Mr Rivera also asserts that there is ambiguity in the undertaking received from the United States Embassy. The Minister contends that the words in the introductory phrase of the operative paragraph, "based on the information provided by the Deputy District Attorney", do no more than explain why the United States is giving the undertaking contemplated by the United States Treaty. Mr Rivera contends, however, that the words indicate that the United States is simply repeating what the DA had said, thereby qualifying its assurance. That is to say, Mr Rivera says that, if the DA is wrong about his assessment of the way in which the Penal Code operates, the undertaking would fail, such that it does not satisfy the requirements of s 22(3)(c). 56 There is no substance in Mr Rivera's contention. However, even if the undertaking from the United States Embassy is to be construed as qualified by reference to the assurances given by the District Attorney's office, there is no reason to doubt that the assurances by the District Attorney's office are effective. In all of the circumstances, the material before the Minister satisfied the prerequisite specified in s 22(3)(c) of the Act. 57 On 27 July 2007, shortly before the Court was to be in a position to give judgment, an application was received from Mr Rivera for leave to make supplementary submissions. Mr Rivera asserted that such leave was justified because he had been denied the opportunity to peruse carefully certain materials that he placed before the Court at the hearing of the appeal "because Corrective Services would not release these materials from [his] stored property". Mr Rivera asserted that certain materials were not given to him by "Corrective Services" until the day of the hearing of his appeal. Mr Rivera did not identify with any precision the materials to which he referred. However, it appears that they include materials that he provided to the Court at the hearing. 58 Mr Rivera spent some time during the course of the oral hearing in taking the Court to material that included the Penal Code, the United States Constitution and the Constitution of the State of California, which had not been before the primary judge. Having regard to the fact that Mr Rivera has appeared without legal assistance and the fact that the supplementary submissions did not exceed five pages of handwriting, I have had regard to the supplementary submissions. The submissions relate to the question of the specialty assurance required by s 22(3)(d). 59 Mr Rivera first drew attention to s 1555.3 of the Penal Code, which provides that nothing is to be taken to constitute a waiver by California of its right, power or privilege to try any demanded person for crime committed within the State or of its right, power or privilege to regain custody of such person by extradition proceedings or otherwise for the purpose of trial, sentence or punishment for any crime committed within the State. Mr Rivera also referred to s 1556 of the Penal Code, which provides that, after a person has been brought back to California by extradition proceedings, he may be tried in California for other crimes that he may be charged with having committed in California as well as for the crime or crimes specified in the requisition for his extradition. Mr Rivera says that no speciality assurance could overcome that provision of the Penal Code. 60 Next, Mr Rivera referred to Art 5 s 13 of the Constitution of the State of California. Section 13 provides that it is the duty of the Attorney-General of California to see that the laws of California are uniformly and adequately enforced. The Attorney-General is to have direct supervision over every District Attorney and sheriff and over such other law enforcement officers as may be designated by law in all matters pertaining to the duties of their respective officers. Whenever, in the opinion of the Attorney-General, any law of the state of California is not being adequately enforced, it is the duty of the Attorney-General to prosecute any violations of law of which the Superior Court has jurisdiction. In such cases, the Attorney-General is to have all the powers of a District Attorney. 61 Mr Rivera says that the Attorney-General for California could direct the DA to amend the charges if he is of the opinion that it is appropriate to do so. Mr Rivera also says that the State Attorney-General is the ultimate authority as to what charges are filed within California and is the only person capable of providing an assurance that Mr Rivera would not be tried for an offence for which the death penalty could be imposed. He says that an assurance that would satisfy s 22(3)(c) of the Act could be given only by: · the Attorney-General of California; · the empanelled jury, who have the authority to impose the death penalty; · the Governor of California who can ensure that, if the death penalty is imposed, it will not be carried out. 62 However, nothing in s 1555.3 or s 1556 removes the power to give an undertaking not to seek or impose the death penalty. Nor does anything in the provisions described affect a specialty assurance. No such undertaking would have the effect of declaring a statute unenforceable or unconstitutional by way of usurpation of the judicial function. An undertaking not to impose the death penalty need not be legally enforceable (see McCrea v Minister for Justice and Customs (2005) 145 FCR 269 at [21] - [25]). I do not consider that the additional matters to which Mr Rivera has drawn attention derogate from the conclusion that I have already expressed that the relevant prerequisites of the Act have been satisfied.

Insufficient Evidence and Bad Faith: Grounds (4) and (6) 63 Grounds (4) and (6) are related and Mr Rivera relies on the same arguments in relation to each of those grounds. Mr Rivera's written submissions refer to so called inconsistencies in the material relied upon by the United States in support of the extradition request. His submissions amount to an attempt to demonstrate that he would not be convicted in California on the basis of the material relied upon by the United States. 64 Mr Rivera made particular reference to materials concerning the cause of the death of the Victim and the date of her death. In addition, his submissions refer to the alleged existence of an audio tape, which is alleged to record a telephone conversation between Mr Rivera and a police officer in California. Mr Rivera alleges that the audio tape records a conversation in which admissions were made that police officers had manufactured evidence involved in the case against Mr Rivera. However, Mr Rivera declined to provide the audio tape to the Minister. 65 Article XI(3)(c) of the United States Treaty provides that a request for the extradition of a person who is sought for prosecution must be supported by, inter alia, a description of the facts, by way of affidavit, statement, or declaration setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it. Mr Rivera contends that the extradition request does not come close to satisfying that requirement. He says that the supporting material failed to establish that the alleged murder was committed while he was in the United States. He also says that the material failed to establish even that a murder was committed in the first place. 66 Mr Rivera refers specifically to an autopsy report suggesting that the cause of the Victim's death was undetermined. The autopsy report also indicated that the date of death was reported as 22 May 2002, whereas Mr Rivera left the United States on 20 May 2002. 67 However, there was material before the Minister indicating that a medical examiner considered that the circumstances were highly suspicious of homicide and that the likely cause of death was smothering or a similar form of asphyxiation. Mr Rivera says that there was no evidence to support a conclusion that the death of the Victim was the result of any type of asphyxiation and that the medical examiner's comments were nothing more than a guess. He says that the medical examiner's guess was not based on medical science but on medical examiner's own speculation involving the circumstances in which the body of the Victim had been found. 68 The material before the Minister also indicated that while the autopsy refers to 22 May 2002 as the date of death of the Victim, that was the date on which the Victim's body was found. There was evidence of significant decomposition, such that an inference was available that the Victim died at about the time when she was last seen, namely, 15 May 2002, when Mr Rivera was still in the United States. 69 Mr Rivera also referred to material indicating that the Victim had commenced divorce proceedings and disappeared approximately five days before a hearing in those proceedings that would determine whether she would get sole custody of her child. Mr Rivera contended that those circumstances suggest that the Victim's former husband was a possible suspect. 70 Mr Rivera says that all the material before the Minister would suggest that there were no reasonable grounds for believing that Mr Rivera had committed the alleged extradition offence: there was at least enough doubt about the possibility of his conviction to indicate that extradition would be unjust. Mr Rivera also contended that the inconsistencies in the evidence, together with the alleged evidence of the audio tape, demonstrated bad faith on the part of the relevant law enforcement officers in California. 71 The grounds are misconceived. Under s 19(5) of the Act, a person to whom proceedings under s 19 relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought. A fortiori it is not for the Minster to form a view as to whether the subject of extradition is likely to be found guilty of the extradition offence. 72 All of the material relied upon by Mr Rivera to support these grounds was put to the Minister in the course of Mr Rivera's representations. They are also matters that he was entitled to ventilate in the proceedings under s 19. He has exhausted his rights of review and appeal in relation to the determination made under s 19 that he is eligible for surrender. It was necessary for the New South Wales Magistrate, in the course of those proceedings, to be satisfied that there was a description of the facts setting forth reasonable grounds for believing that an offence had been committed and that Mr Rivera had committed it. It was not part of the Minister's function to second guess that process. In the circumstances, there is no substance in these grounds.

Unreasonableness: Ground (7) 73 No submissions were specifically directed to ground (7), that no reasonable decision maker could have made the decision made by the Minister. It may be that the ground was intended to raise the exercise of discretion conferred by s 22(3)(f). 74 The Departmental Submission accepted that the Minister had a general discretion whether to surrender Mr Rivera to the United States or not. The Departmental Submission outlined a number of matters that were the subject of representations by Mr Rivera that it was appropriate for the Minister to take into account in the exercise of that discretion. They were as follows. · Mr Rivera's allegations that the Californian police had manufactured and distributed adverse publicity concerning him, such that he could not receive a fair trial. · Mr Rivera's claims that he was assaulted by Californian police during their investigation. · Mr Rivera's assertions that the DA manufactured facts when preparing affidavits for the extradition request. · Mr Rivera's claims that he would be assassinated if he is returned to California. · Mr Rivera's claims that prison conditions in California are substandard. · Mr Rivera's claims that the Victim's former husband could have been responsible for her death. · Mr Rivera's assertions that it would be oppressive to grant extradition because the evidence against him is circumstantial and flawed. · Mr Rivera's claims that officers of the Attorney-General's Department were biased and incompetent in their handling of his extradition. 75 Each of those matters was separately addressed in the Departmental Submission. The Departmental Submission also dealt with the response from the United States to Mr Rivera's representations. The Minister had regard to all of those matters. The conclusion that Mr Rivera should be surrendered was open to the Minister on the material before him. This ground is not made out.

Denial of Procedural Fairness: Ground (8) 76 Mr Rivera claims that on 15 September 2005 he notified an officer of the Minister's Department that he would provide witnesses "to substantiate any submissions in which the Department [sic] felt was inadequate based on my written submissions". He says that he was told that he would be informed if such evidence was required, but that his complaints about torture and other issues were dismissed without being allowed to provide such witnesses. He says that he was, in effect, precluded from presenting his case or disproving the facts acted upon that were erroneous. 77 Mr Rivera's assertion is not supported by the evidence. On 29 September 2005, the Minister's senior legal officer wrote to Mr Rivera saying: "you offered to provide witnesses by video link to the extent that the evidence in your submissions is regarded as hearsay. I note your offer and will inform you should such evidence be required". There was no departure from the course suggested by the senior legal officer: the Minister did not treat any material upon which Mr Rivera wished to rely as hearsay. The Minister was not bound by the rules of evidence and the Minister accepted that the materials provided by Mr Rivera indicated that prisoners in United States correctional facilities, including those in California, may be subjected to physical and sexual abuse and that such abuse may be perpetrated by prison guards and other prisoners on a frequent basis. 78 The witnesses that Mr Rivera claims he proffered were witnesses relating to complaints of torture in Australia and adverse treatment while in custody in Australia. The claim that Mr Rivera's complaints of torture in Australia were dismissed without his being given an opportunity to provide witnesses is misconceived. Mr Rivera's complaint of torture was made in support of his submission to the Minister that he would be subjected to torture in California. The Minister concluded that the forms of maltreatment that Mr Rivera claimed to have suffered in New South Wales were not relevant to determining whether he would be subjected to torture if surrendered to the United States. Accordingly, the Minister made no finding on the truth or otherwise of Mr Rivera's assertions concerning maltreatment in Australia because the Minister, correctly, regarded the assertions as irrelevant. 79 Further, Mr Rivera complains that he told Departmental officers that, should the Department reject his request for an oral inquiry in relation to the audio tape, he should be allowed to produce the police officer who is alleged to be the subject of that material to appear by video link to authenticate the audio tape. Mr Rivera claimed that he "could have provided official witnesses from the United States" that were involved in the conduct of the investigation of the murder of the Victim in order "to verify the date of death". Mr Rivera referred again to documents listing the Victim's date of death as 22 May 2002. 80 However, the Minister did not base his decision to surrender Mr Rivera in whole or in part on any conclusion as to his guilt in respect of the alleged offence. That is not the function of the Minister in making a determination under s 22(2). In any event, Mr Rivera did not offer official witnesses involved in the investigation. Rather, he offered a person from the Public Defender's office who, he said, had made phone inquiries on his behalf of the coroner in California. That material was before the Minister. 81 Where a denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is difficult for a court to conclude that compliance with the requirements of natural justice could have made no difference. It is not easy for a court to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of an issue of fact (see Stead v State Government Insurance Commission (1986) 161 CLR 141). However, the matters relied upon by Mr Rivera do not establish that there was a denial of procedural fairness by the Minister. Accordingly, it is unnecessary to determine whether there is any prospect that Mr Rivera would have been able to adduce additional evidence that might have made a difference to the outcome.

Irrelevant and Relevant Considerations: Ground (9) 82 Many of the matters relied on by Mr Rivera under this ground overlap with other grounds. All of the so-called irrelevant considerations taken into account and relevant considerations not taken into account were the subject of representations by Mr Rivera to the Minister and were dealt with in the Departmental Submission. The complaint is, in essence, that the Minister reached a conclusion adverse to Mr Rivera on the various issues. 83 Mr Rivera did not expressly address the question as to whether relevant considerations were mandatory and whether or not the Minister failed to take such considerations into account. The various considerations raised by Mr Rivera can be dealt with separately.

Military Affiliation 84 Mr Rivera contended that he would suffer prejudice by reason of his military affiliation. That is not a mandatory consideration for the Minister and whether or not the Minister took it into account is immaterial. In any event, the Minister took the matter into account, without reviewable error.

Prejudice at Trial 85 The Minister accepts that this is a consideration that must be taken into account. It was in fact considered as indicated above.

Status and Prominence 86 Mr Rivera complained that unfair pre-trial publicity in the United States is likely to deprive him of a fair trial. This is not a mandatory consideration. Nevertheless, it was taken into account by the Minister. The Departmental Submission concluded that the effect, if any, of adverse publicity on potential jurors is likely to have diminished in the period since the publicity appeared and that there are well established procedures to enable Mr Rivera to test any claim at the trial. Mr Rivera contended that the publicity, although more than four years old, would linger because it was still available on the internet. Notwithstanding that that is not a mandatory consideration, the representation was dealt with in the Departmental Submission and considered by the Minister.

Venue of Trial 87 Mr Rivera said that Barstow is a small, remote area with a population of only 21,000 and that he would not receive a fair trial. This appears to be a particular of his complaint that he would not receive a fair trial. Clearly, the matter was taken into account by the Minister, even though he was not required to do so. It is not for the Minster to undertake a preliminary hearing of the kind associated with a criminal trial into questions of alleged unfairness. That is a matter for the California Court, as the primary judge held. Mr Rivera asserted that any motion for a change of venue was unlikely to succeed. However, while he was not required to do so, the Minister did in fact take that consideration into account.

Voir Dire 88 Mr Rivera contended that the voir dire process would cause a greater chance of unfair discrimination. That assertion was expressly considered by the Minister, even though he was not required to do so.

Chances of Acquittal 89 This so-called consideration is a repetition of the absence of the likelihood of a fair trial. Further, it was considered by the Minister.

Prison Conditions 90 This is a repetition of the question of prison conditions as constituting torture or being inconsistent with humanitarian considerations. Clearly the matter was addressed by the Minister.

Apprehension of Bias: Ground (10) 91 Mr Rivera referred to three incidents in support of ground (10). None of them has any substance. 92 The first incident complained of involved a telephone call by Mr Rivera to Ms Victoria Bickford, the case officer then handling his matter. Ms Bickford uttered an expletive, which was not intended to be heard by Mr Rivera. Mr Rivera complained about the matter on 20 July 2005, whereupon an immediate investigation was conducted and Ms Bickford was removed from the case. On 16 September 2005, Mr Rivera complained that his complaint was not about Ms Bickford but about "institutional bias". The ultimate decision maker was the Minister and not departmental officers. Ms Bickford had nothing to do with the preparation of the Departmental Submissions. There is no foundation for an allegation of bias arising out of this incident. 93 The second matter is that a Ms Nelson, a subsequent case officer, "appeared" to have "lied" to Mr Rivera about an incident involving a video copy of an American television program that mentioned Mr Rivera. Mr Rivera also made complaints that Ms Nelson screened her telephone calls and avoided communications with him. None of those matters could constitute a foundation for bias or a reasonable apprehension of bias on the part of the Minister as decision maker. 94 The third allegation is that the Secretary of the Minister's Department intentionally relied upon erroneous information, which initially resulted in an adverse decision for Mr Rivera in a complaint to the Human Rights and Equal Opportunity Commission about the New South Wales Department of Corrective Services. However, there is no material before the Court that would support such a very serious allegation that the Secretary deliberately misled the Human Rights Commission. In any event, even if the allegation were established, the Secretary had no involvement in the decision making process by the Minister. 95 Mr Rivera also repeats the allegation of denial of procedural fairness. None of those matters can give rise to an inference of bias on the part of the Minister.

Constitutionality of Section 22: Ground (11) 96 The primary judge expressed no view concerning the Constitutionality of s 22 because no arguments were advanced to his Honour by Mr Rivera. Nevertheless, Mr Rivera maintains his contention that s 22 of the Act is invalid and ultra vires of the Commonwealth Parliament. He says that: · s 22 involves the conferral of judicial power on the Minister and it is inappropriate for elected politicians to exercise judicial powers that involve life and death implications; and · the power conferred on the Minister by s 22 is unreasonable and disproportionate to the object sought to be achieved by the Act. 97 The first ground raises the question of whether the power conferred by s 22 is judicial power. Mr Rivera, having stated the ground, advanced no real arguments in support of it. The power conferred by s 22(2) to determine, after a person becomes an eligible person, whether the person is to be surrendered, does not involve the exercise of judicial power but is a valid exercise of executive power (see Vasiljkovic v The Commonwealth (2006) 228 ALR 447). 98 Mr Rivera's written submissions were directed, at some length, to the other ground. Mr Rivera contends that s 22 amounts to an infringement of civil liberties of an eligible person. Specifically, Mr Rivera complains that, notwithstanding that he does not have the benefit of legal representation, he was of necessity required to make submissions opposing his surrender and that, in so doing, he was effectively called upon to waive privilege against self-incrimination. 99 Mr Rivera complains that, as a person who is subjected to extradition proceedings, he was not informed of his legal rights because no legal aid was provided. He says that the manner in which the Minister conducted the process under s 22 put him in such an emotional state as to impair his capacity for rational judgment. He says that, as an unrepresented fugitive, he was under such duress and coercion that he was induced to speak about his case under the illusory promise that his submissions would be taken seriously when in fact that was not so. Mr Rivera asserts that the Minister had no intention of releasing him, yet allowed him to provide submissions in order to appear to satisfy the requirements of procedural fairness. Such submissions, he asserts, were induced by the promise of the possibility of release that would never materialise. 100 The privilege against self-incrimination is deeply ingrained in the common law. Nevertheless, the Commonwealth Parliament may, if it chooses, abrogate the privilege by legislation (see Sorby v The Commonwealth (1983) 152 CLR 281 at 298-299 and 306-309). 101 Further, there is no common law right to legal representation at a criminal trial (see Dietrich v The Queen (1992) 177 CLR 292); nor is there any Constitutional right to legal representation. In the absence of a right to legal representation at a criminal trial there is no basis for concluding that there is a Constitutional right to legal representation for the purpose of making submissions to the Minister prior to the making of a determination under s 22(2) (see Rivera v United States of America [2004] FCAFC 154 at [23]-[29]). There is no substance in Mr Rivera's contentions that s 22 is beyond the power of the Commonwealth Parliament.

CONCLUSION 102 The appeal should be dismissed with costs. I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT CONTI J: 103 I agree that the appeal should be dismissed with costs, at least for the reasons articulated by Emmett J.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT BUCHANAN J: 104 Lawrence Rivera is a citizen of the United States of America ('the USA'). The USA seeks his extradition from Australia to stand trial in California for murder. 105 The charge brought against Mr Rivera in the Superior Court of California, San Bernardino County, Barstow District contains a single count in the following terms: 'On or about May 15, 2002, in the above named judicial district, the crime of MURDER, in violation of PENAL CODE SECTION 187(A), a felony, was committed by Lawrence John Rivera, who did unlawfully, and with malice aforethought murder Kristina Louise Garcia, a human being.' 106 In an affidavit sworn in support of the request for Mr Rivera's extradition Mr Michael Fermin, Deputy District Attorney for San Bernardino County gave a detailed account of the facts and circumstances to be alleged against Mr Rivera. It is sufficient to quote the following: '7. It is alleged that, early on the morning of May 15, 2002, Lawrence RIVERA engaged in a violent struggle with Kristina Louise Garcia in a remote desert area off Yermo Cut Off Road, north of Fort Irwin Road, in the County of San Bernardino, California. During this struggle, it is alleged that RIVERA strangled the victim with the premeditated, willful [sic], and deliberate intention of killing her. Garcia died as a result of the injuries inflicted upon her.' 107 The Extradition Act 1988 (Cth) ('the Act') permits and regulates the surrender of persons by the government of Australia to the government of another country. In Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 the Act was described, in the following way, as containing a four stage process (at 389): 'The stages in the legislative scheme The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered. In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney-General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered.' 108 In the present case the primary judge, in the decision under appeal (Rivera v Minister for Justice and Customs [2006] FCA 1784) described the passage of the first three stages as follows at [2] to [3]: '2. On 19 September 2002, the applicant was arrested in Orange in New South Wales under a provisional arrest warrant issued by a magistrate on 4 September 2002 under s 12 of the Act. The applicant has been detained in custody since that time. On 12 November 2002, the Minister received an extradition request from the United States for the applicant's extradition, in relation to one count of murder, contrary to s 187 of the Code. On 14 November 2002, the Minister issued a notice under s 16 of the Act, being a notice addressed to a magistrate stating that an extradition request had been received. 3. In December 2002, a magistrate determined that the applicant was eligible for surrender and committed him to prison to await surrender, pursuant to s 19(9) of the Act. The applicant unsuccessfully challenged the magistrate's decision, or his eligibility for surrender, in the Supreme Court of New South Wales, the Full Court of the Federal Court, and the High Court.' 109 Section 22(2) of the Act provides (references to the 'Attorney-General' should be understood to include references to the respondent ('the Minister') pursuant to s 19A of the Acts Interpretation Act 1901 (Cth)): '22(2) The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences.' 110 Mr Rivera became eligible for surrender to the USA as a result of the magistrate's order, referred to by the primary judge. 111 Section 23 of the Act provides: '23. Where the Attorney-General determines under subsection 22(2) that a person is to be surrendered to an extradition country in relation to an extradition offence or extradition offences, the Attorney-General shall, unless the Attorney-General issues a temporary surrender warrant, issue a warrant for the surrender of the person to the extradition country under this section. 112 On 31 August 2006 the Minister signed a surrender warrant authorising Mr Rivera's surrender to an escort party and his transport, in custody, from Australia to the USA. 113 The proceedings before the primary judge were commenced by application under the Judiciary Act 1903 (Cth) challenging the decision by the Minister that Mr Rivera be surrendered to the government of the USA. The determination of that question by the Minister is governed by s 22(3) of the Act which imposes limits upon the circumstances in which an eligible person may be surrendered. It provides: 'For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if: (a) the Attorney-General is satisfied that there is no extradition objection in relation to the offence; (b) the Attorney-General is satisfied that, on surrender to the extradition country, the person will not be subjected to torture; (c) where the offence is punishable by a penalty of death - by virtue of an undertaking given by the extradition country to Australia, one of the following is applicable: (i) the person will not be tried for the offence; (ii) if the person is tried for the offence, the death penalty will not be imposed on the person; (iii) if the death penalty is imposed on the person, it will not be carried out; (d) The extradition country concerned has given a specialty assurance in relation to the person; (e) where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that: (i) surrender of the person in relation to the offence shall be refused; or (ii) surrender of the person in relation to the offence may be refused; in certain circumstances - the Attorney-General is satisfied: (iii) where subparagraph (i) applies - that the circumstances do not exist; or (iv) where subparagraph (ii) applies - either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused; and (f) the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence.' 114 The primary judge considered and rejected a range of arguments advanced by Mr Rivera raising various issues in relation to s 22(3). The only matter which his Honour felt to be of any substance was whether an appropriate undertaking concerning the death penalty had been given in accordance with s 22(3)(c). His Honour concluded that it had been. He dismissed Mr Rivera's application with costs. Mr Rivera appealed. 115 Mr Rivera advanced 11 grounds of appeal: '1. The primary judge was wrong in determining that the appellant would not be prejudice [sic] at trial because of his race and religion under s.22(3)(a) of the Extradition Treaty Act 1988 ("the Act"). 2. The primary judge was wrong in determining that the appellant would not be subjected to torture under s 22(3)(b) of the Act. 3. The primary judge was wrong in determining that the undertaken [sic] for the death penalty conformed with the constructional language of the terms of s 22(3)(c) of the Act. 4. The Judgment cannot be supported having regard to the whole of the evidence and international law as required under s 22 of the Act. 5. The primary judge erred in determining that the surrender of the appellant would not be unjust, oppressive, or incompatiable [sic] with humanitarian considerations to do so. 6. The primary judge erred in determining that the extradition request was not made in bad faith. 7. The Judgment was so unreasonable that no reasonable person could have formed the same conclusion 8. The primary judge was wrong in determining that the appellant was not denied natural justice. 9. The Judgment was an improper ruling because the primary judge took into account irrelevant considerations and failed to take into account relevant considerations. 10. The primary judge was wrong in determining that the proceedings had not been tainted by an apprehension of bias by the respondent. 11. The primary judge was wrong in determining that s 22 of the Act was constitutional.' 116 Some of the grounds of appeal suggest errors by the Minister in the task of determining, in accordance with s 22(3) of the Act, whether Mr Rivera should be surrendered to the USA, others suggest the Minister was biased or denied Mr Rivera procedural fairness, yet others suggest errors or deficiencies in the judgment under appeal and, finally, it is contended that s 22 of the Act is invalid. I shall deal with matters in that order, and, so far as challenges to the Minister's decision are concerned, in the order in which the various matters arise under s 22(3).

Extradition Objection 117 Under s 22(3)(a) the Minister must be satisfied that there is no 'extradition objection' in relation to the offence relied upon. The term 'extradition objection' is defined by s 7 of the Act. Section 7 provides: '7. For the purposes of this Act, there is an extradition objection in relation to an extradition offence for which the surrender of a person is sought by an extradition country if: (a) the extradition offence is a political offence in relation to the extradition country; (b) the surrender of the person, in so far as it purports to be sought for the extradition offence, is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, religion, nationality or political opinions or for a political offence in relation to the extradition country; (c) on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, religion, nationality or political opinions; (d) assuming that the conduct constituting the extradition offence, or equivalent conduct, had taken place in Australia at the time at which the extradition request for the surrender of the person was received, that conduct or equivalent conduct would have constituted an offence under the military law, but not also under the ordinary criminal law, of Australia; or (e) the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or has undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence.' 118 Section 7(a), (d) and (e) have no application to the present case. There is no basis either to suppose that Mr Rivera's surrender is 'actually sought' for the purpose of prosecuting him on the basis of his race, religion, nationality or political opinions as contemplated by s 7(b). 119 However, Mr Rivera claims that he may be prejudiced at his trial by reason of his race or religion (s 7(c)). He claims to be a Hispanic-Muslim who would not receive a fair trial in Barstow, California. 120 I do not think it should be accepted that Mr Rivera will not receive a fair trial in the USA or punished by reason of his race or religion. His assertions to this effect are clearly inadequate to raise a respectable case for consideration. In any event it is clear that his allegations were brought to the attention of the Minister. There is no basis to suppose that the Minister did not apply his mind, as required, to whether there was a sustainable extradition objection. Ground 1 of the appeal should be rejected.

Torture 121 Section 22(3)(b) prohibits surrender unless the Minister is satisfied that the person will not subjected to torture. Mr Rivera made complaints about conditions in California prisons suggesting that he would face physical and sexual assaults. He appeared to claim that torture might occur. It has been held that the reference to 'torture' in the Act 'is directed to institutionalised conduct by government authorities for the purpose of punishment, intimidation or coercion', that it does not extend to the conduct of inmates towards other inmates and is not converted to institutionalised conduct because some corrupt prison officials ignore or even encourage unacceptable conduct by other inmates (see de Bruyn v Minister for Justice and Customs (2004) 143 FCR 162 at [1], [55].) 122 There is no basis to find that Mr Rivera will be subjected to torture within the meaning of s 22(3)(b). His contentions were brought to the attention of the Minister. There is no basis to conclude they were overlooked. Ground 2 of the appeal should be rejected.

Death penalty and speciality assurance 123 The provisions of s 22(3)(c) have been set out earlier. Section 22(3)(c)(i) may be excluded from further consideration. No undertaking of this kind has been given. The purpose of the extradition request was for Mr Rivera to be tried. The remaining two alternatives (one of which must be satisfied in a relevant case) require either an undertaking that the death penalty will not be imposed or, if imposed, will not be carried out. 124 The first question to be examined is whether Mr Rivera needs the benefit of any such undertaking. If he does there is a question whether an undertaking provided by the USA which was intended to satisfy s 22(3)(c) actually does so. 125 The material before the Minister included a sworn explanation of Mr Fermin, who has already been referred to, that conviction for the crime with which Mr Rivera has been charged would not expose him to the death penalty. In an initial affidavit provided in support of the request by the USA for Mr Rivera's extradition Mr Fermin stated: 'In California, defendants charged with murder are always charged under California Penal Code Section 187 since it defines the charge of murder. While statutes in the same Chapter (Chapter 1 of Title 8) define degrees, malice requirements, punishment, and others, -the main charging section is 187. Further, in California, the charging document need not limit the degree of murder a prosecutor may seek. There are two degrees of murder in California. First and Second Degree Murder are defined in Penal Code Section 189. Penal Code Section 190 is the penalty section for murder. First Degree Murder, under the circumstancesofthiscase,carries a sentence of twenty-five years to life in prison. Second Degree Murder carries a sentence of fifteen years to life in prison. Based on the factsknown to the DistrictAttorneys Office,the District Attorney will be seeking a First Degree Murder verdict from the juryfor willful, deliberate, and premeditated murder. Attached as Exhibit 2 is California Penal Code Chapter 1 of Title 8, as well other relevant Sections cited in the complaint.' (emphasis added) 126 Two matters should be noted. First, Mr Fermin's assessment of any possible punishment of Mr Rivera is connected with the circumstances of the case as known to the District Attorney's Office. While there is no reason to think the facts have not been fully investigated or there is any real likelihood the charges might be amended to carry the more serious consequences discussed hereunder, nevertheless the conditional nature of the assessment must be accepted. As will be seen shortly this circumstance requires attention to the terms and potential operation of the speciality assurance required by s 22(3)(d). 127 Secondly, the reference to 'the circumstances of this case' requires further explanation, which was also provided by Mr Fermin. In a supplementary affidavit he explained: 'Under California Penal Code Section 187, the ranges of punishment of murder are: fifteen years to life in prison (for murder in the second degree), twenty-five years to life in prison (for murder in the first degree), life in prison without the possibility of parole (for murder in the first degree and a finding of true of any special circumstance alleged in charging document and proven at trial), and death (for murder in the first degree and a finding of true of any special circumstancealleged in chargingdocument and provenat trial, and a determination, by jury during a penaltyphase jury trial, of death as the punishment). As for the punishment of death,acriminaldefendant may only receive thedeath penalty after beingcharged with murder and one or more specialcircumstances, as defined by Penal Code Section 190.2(a). See Penal Code Sections 190, 190.1(a). The Defendant must then be found guilty of murder in the first degree and a true finding as to one of the special circumstances alleged pursuant to Penal Code Section 190.2(a). See Penal Code Sections 190, 190.1(a). Only after such findings may a jurydecide whether the defendant should receive the death penalty. See Penal Code Section 190.3. As alleged in the complaint (the charging document), under Exhibit 1A of the Affidavit in Support of Extradition, Lawrence John Rivera is only charged with the murder of Kristina Louise Garcia pursuant to Penal Code Section 187. No special circumstances, as defined by Penal Code Sections 190.1 et. seq. (Exhibit 2 of the Affidavit in Support of Extradition), are charged in the felony complaint. Since no special circumstances are charged in the complaint, the only punishment options are fifteen years to life in prison (for murder in the second degree), and twenty-five years to life in prison (for murder in the first degree). (emphasis added) 128 Mr Rivera challenged this explanation. He asserted that it was open to a jury to find the existence of 'special circumstances' and set in motion the mechanism which might lead ultimately to the imposition, by the jury, of the death penalty. In a related submission he asserted that only a jury (which had not in any event been empanelled) could give an undertaking within the meaning of s 22(3)(c)(ii) of the Act not to impose a death penalty and only the Governor of California could give an undertaking within the meaning of s 22(3)(c)(iii) of the Act not to carry out the death penalty if one were imposed. No undertaking of this kind had been (or, in the case of a jury, could be) given. 129 In order to examine the competing contentions, it is necessary to know something about the provisions to which Mr Fermin was referring. 130 Section 187(a) of the California Penal Code defines murder (subject to exceptions not here relevant) as follows: '187.(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.' 131 The degrees of murder are established by s 189 which, so far as here relevant, provides: '189. All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.' (emphasis added) 132 Punishment for murder is dealt with by s 190 which, in s 190(a) first makes a distinction between first degree and second degree murder: '(a) Every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. The penalty to be applied shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4, and 190.5. Except as provided in subdivision (b), (c), or (d), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life.' There is no provision for the death penalty to be imposed for second degree murder. It is not necessary to explore the further variations for punishment of second degree murder. 133 First degree murder may be punished by: death; life imprisonment without parole; or imprisonment for 25 years to life. The first two punishments are alternatives in cases where 'special circumstances' are established. The third possibility caters for first degree murder cases where special circumstances are not established. Of special significance for the examination of Mr Rivera's arguments is whether such special circumstances must first be charged in order to open up any possibility of a death penalty. 134 Section 190.1 establishes special procedures for possible death penalty cases. There are separate phases to the proceedings. Those of any relevance to Mr Rivera are described as follows: 'A case in which the death penalty may be imposed pursuant to this chapter shall be tried in separate phases as follows: (a) The question of the defendant's guilt shall be first determined. If the trier of fact finds the defendant guilty of first degree murder, it shall at the same time determine the truth of all special circumstances charged as enumerated in Section 190.2 … (c) If the defendant is found guilty of first degree murder and one or more special circumstances as enumerated in Section 190.2 has been charged and found to be true, his sanity on any plea of not guilty by reason of insanity under Section 1026 shall be determined as provided in Section 190.4. If he is found to be sane, there shall thereupon be further proceedings on the question of the penalty to be imposed. Such proceedings shall be conducted in accordance with the provisions of Section 190.3 and 190.4.' (emphasis added) 135 Section 190.2 then identifies a number of special circumstances which, if found true under s 190.4 may result in a penalty of death or life imprisonment without parole. There is a long list of such possible special circumstances. Conceivably, some could have been charged against Mr Rivera although, as earlier noted, it has been stated that there is no intention to charge him with any special circumstance. 136 Section 190.3 provides: 'If the defendant has been found guilty of murder in the fist degree, and a special circumstance has been charged and found to be true …the trier of fact shall determine whether the penalty shall be death or confinement in state prison for a term of life without the possibility of parole.' (emphasis added) 137 There is a comprehensive regime to govern what is to be taken into account when choosing between the death penalty and life imprisonment without parole. 138 Section 190.4 makes detailed provision for the establishment of special circumstances. They must be individually proved beyond reasonable doubt at the trial itself. It commences: '190.4(a) Whenever special circumstances as enumerated in Section 190.2 are alleged and the trier of fact finds the defendant guilty of first degree murder, the trier of fact shall also make a special finding on the truth of each alleged special circumstance. The determination of the truth of any or all of the special circumstances shall be made by the trier of fact on the evidence presented at the trial …' (emphasis added) 139 Mr Rivera argued that the question whether special circumstances were found established and the death penalty imposed was entirely a matter for the jury and not the prosecutor. However, the provisions I have emphasised in ss 190.1, 190.3 and 190.4 appear to make it clear that where such matters arise for consideration by a jury it is because special circumstances have actually been charged. 140 As a matter of ordinary construction, therefore, there is no reason to cavil with Mr Fermin's explanation. It seems clear that special circumstances must be charged and, unless charged, it would not be open to the jury, acting independently, to find their existence or proceed upon any such finding to the further step of imposing the death penalty. 141 If that is so the next question is whether, despite its present assessment of the case, it would be open to the District Attorney's Office to amend the charge to include an allegation of special circumstances. One possible barrier to such a course is the existence of a speciality assurance conforming with s 22(3)(d). If the speciality assurance represents an effective barrier to any amendment of the charge to include a special circumstance then no possibility that the death penalty may be imposed can arise. If it does not, however, attention is needed to whether an assurance has been provided as required by s 22(3)(c) that the death penalty will not be imposed or, if imposed will not be carried out. 142 The requirement in s 22(3)(d), that the extradition country (the USA) have given a speciality assurance, requires consequential reference to s 22(4) which provides: ' (4) For the purposes of paragraph (3) (d), the extradition country shall be taken to have given a speciality assurance in relation to the eligible person if, by virtue of: (a) a provision of the law of the country; (b) a provision of an extradition treaty in relation to the country; or (c) an undertaking given by the country to Australia; the eligible person, after being surrendered to the country, will not, unless the eligible person has left or had the opportunity of leaving the country: (d) be detained or tried in the country for any offence that is alleged to have been committed, or was committed, before the eligible person's surrender other than: (i) any surrender offence; (ii) any offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) of which the eligible person could be convicted on proof of the conduct constituting any surrender offence; (iii) any extradition offence in relation to the country (not being an offence for which the country sought the surrender of the eligible person in proceedings under section 19) in respect of which the Attorney-General consents to the eligible person being so detained or tried; or (e) be detained in the country for the purpose of being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before the eligible person's surrender to the first-mentioned country, other than any offence in respect of which the Attorney-General consents to the eligible person being so detained and surrendered.' 143 Section 22(4) may be summarised sufficiently for present purposes as requiring that there must be a speciality assurance to the effect that Mr Rivera, if surrendered, will not, without having the opportunity to leave the USA, be tried for any offence alleged to have been committed before his surrender other than the surrender offence or an offence, similarly proved, carrying no greater penalty. 144 Extradition arrangements from Australia to the USA are governed by the Extradition (United States of America) Regulations ('the regulations'). In the regulations the USA is declared to be an extradition country (reg 3). The Act applies in relation to the USA subject to a Treaty on Extradition between Australia and the United States of America which came into force on 8 May 1976, as amended by a Protocol done at Seoul on 4 September 1990. Article XIV of the Treaty (in the replacement form directed by the Protocol) provides a speciality assurance applying generally and conforming with the requirements of s 22(4). 145 Mr Rivera argues, with some persuasion in my view, that the offence with which he is charged is the undifferentiated offence of murder under s 187 of the California Penal Code and, as the possible range of punishments of first or second degree murder is established outside the operation of s 187 and without changing the identity of the offence, an amendment to charge special circumstances would not alter the offence charged or be contrary to the speciality assurance. The contention has, I think, some support from Mr Fermin's initial explanation of the charge against Mr Rivera which I earlier set out. If Mr Rivera's analysis is correct the speciality assurance does not exclude the possibility that he may be exposed to the death penalty by an amendment to the charge against him. 146 It is ultimately not necessary to decide whether the speciality assurance alone represents a sufficient bulwark against the possibility that the death penalty might be sought against Mr Rivera. Even if Mr Rivera's contentions were accepted that would not result in a decision in his favour in the appeal or a judicial direction that he not be surrendered to the USA. That is because a separate assurance, particular to his case, has been given that no death penalty will be imposed or carried out. As will be seen, in my view that assurance satisfies s 22(3)(c). 147 For the same reason, further written submissions filed by Mr Rivera after the hearing of the appeal cannot assist him. In those submissions he drew attention to further provisions of the California Penal Code including s 1556, which provides: 'After a person has been brought back to this State by extradition proceedings, he may be tried in this State for other crimes which he may be charged with having committed in this State as well as for the crime or crimes specified in the requisition for his extradition.' 148 He also drew attention to the obligation of the Attorney-General of California, under the California State Constitution, to 'see that the laws of the State are uniformly and adequately enforced' and to the fact that the Attorney-General has 'direct supervision' over district attorneys and has 'all the powers of a district attorney' (California State Constitution, Article 5 Sec 13). Mr Rivera submitted therefore that the Attorney-General could direct the district attorney to amend the charge against him and, I infer, to bring other charges. 149 I have already mentioned the possibility of an amendment to the present charge against Mr Rivera. The possibility of a new charge must be evaluated against the specialty assurance, notwithstanding the additional matters to which Mr Rivera has referred. 150 The specialty assurance is contained in a treaty. Article VI of the Constitution of the United States provides: 'This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.' 151 Correspondingly, Article 3, Sec 1 of the California State Constitution provides: 'The State of California is an inseparable part of the United States of America, and the United States Constitution is the supreme law of the land.' There is no reason, for the purpose of the present case, to doubt that the specialty assurance would be fully effective to prevent further more serious charges against Mr Rivera. 152 Nevertheless, even if his arguments were correct as to the possibility of further charges at the direction of the Attorney-General of California the existence of the further diplomatic assurance, referred to hereunder, that no death penalty will be imposed or carried out, satisfies s 22(3)(c) and removes this element as a foundation for a challenge to the decision of the Minister. 153 Article VIII of the Treaty (as replaced by the Protocol) and incorporated by the regulations provides as follows: 'If, under the law of the requesting State, an offence for which the extradition of a person is requested is subject to a penalty of death, the requested State may refuse the extradition unless the requesting State gives an undertaking that the death penalty will not be imposed or, if imposed, will not be carried out.' 154 In the present case the Embassy of the USA in Canberra provided a diplomatic assurance, dated 28 February 2005, in the following terms: 'The Embassy of the United States of America presents its compliments to the Department of Foreign Affairs and Trade and refers to Diplomatic Note 160, dated November 12, 2002, requesting the extradition of Lawrence Rivera to stand trial on a charge of murder The Deputy District Attorney for San Bernardino County, California, in his previously provided affidavit in support of extradition (pgs 8-9), provided the information that the San Bernardino County District Attorney's Office would not seek or impose the death penalty on Lawrence Rivera. The Deputy District Attorney provided an additional statement in a supplementary affidavit (pg 3), also previously provided, which explained that the death penalty is not an available punishment for the charge filed against Lawrence Rivera, and that the only possible punishments that would apply to Lawrence Rivera are 15 years to life in prison for the charge of murder in the second degree, or 25 years to life in prison for the charge of' murder in the first degree Based on the information provided by the Deputy District Attorney for San Bernardino County, California, and in accordance with Article VIII of the 1974 U S - Australia Extradition Treaty, as amended by Article 5 of the 1990 Protocol Amending the Extradition Treaty, the United States Government assures the Government of Australia that the death penalty will not be sought or imposed against Lawrence Rivera The Embassy of the United States of America avails itself of this opportunity to renew to the Department of Foreign Affairs and Trade the assurances of its highest consideration. Embassy of the United States of America Canberra, February 28, 2005' (emphasis added) 155 Two issues arise in relation to this diplomatic assurance. The first is whether the fact that it refers to the views of the Deputy District Attorney for San Bernardino County and his analysis of the relevant provisions of the Penal Code and then introduces the assurance with the words 'based on the information provided' diminishes its reliability for the purpose of s 22(3)(c). 156 Accepting that the construction upon which such a contention would depend cannot be dismissed as fanciful or unmeritorious, nevertheless, in my view it should not be accepted. The reference to Mr Fermin's opinions is introductory and explanatory and it does not indicate any abrogation of sovereign responsibility. The assurance itself is given by explicit reference to Article VIII of the Treaty. It should be regarded, within the meaning of that Article, as intended to fully meet its requirements and expectations. 157 The second question arises from the use of the term 'assures' rather than 'undertakes'. Counsel for the Minister, Mr Beaumont, submitted to us, I think correctly, that on its face the assurance bears all the form and solemnity of an undertaking given in accordance with the requirements of Article VIII. 158 The Full Court judgment in McCrea v Minister for Customs and Justice (2005) 145 FCR 269 ('McCrea') makes it clear that the question whether an undertaking is sufficient and effective for the purpose of s 22(3)(c) of the Act is not to be confused with the question whether it is legally enforceable in the ordinary sense. Diplomatic undertakings pursuant to treaties, given by sovereign polities to each other, are frequently not enforceable in this way. As was said in McCrea (at [20]): '… the undertaking provided for by s 22(3)(c) is to be given by one country to another in the context of reciprocal international obligations. Undertakings of such a character are not ordinarily (if at all) enforceable in a domestic court or internationally. No mechanism for enforcement is provided or even suggested in the Act. Moreover, the very concept of an "undertaking" involves an obligation that is deliberate and serious but not necessarily legally enforceable.' 159 On the view which I take of the diplomatic assurance the requirements of s 22(3)(c) of the Act are met. No error was made by the primary judge in this regard. Ground 3 of the appeal must be rejected.

General discretion 160 Section 22(3)(f) requires the Minister to be satisfied that Mr Rivera should be surrendered. Mr Rivera relied on general humanitarian considerations, apart from the suggestions about torture which I have already addressed to argue that the Minister could not properly have been satisfied. It is clear from the material before the Minister that regard was paid to Mr Rivera's suggestions that conditions in Californian prisons would constitute cruel, inhuman or degrading treatment or punishment, apart from the question of torture. The submission to the Minister contained the following: 'Article 7 of the International Covenant on Civil and Political Rights ("ICCPR"), to which Australia is a party, states that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." While the obligations expressed in the ICCPR extend to all individuals "within its territory or subject to its jurisdiction", the UN Human Rights committee ("the Committee") and leading commentators have held that the ICCPR's prohibition on acts of cruel, inhuman or degrading treatment or punishment is subject to an implied non-refoulement obligation, namely an obligation not to expel, return or extradite an individual to a jurisdiction where it is "a necessary and foreseeable consequence" that they may face such maltreatment' 161 The following specific comments were made for the Minister's assistance: '92 The issue for consideration is prospective, namely whether Mr Rivera would suffer cruel, inhuman or degrading treatment or punishment if he were imprisoned in the United States 93. Imprisonment is a severe form of punishment depriving a person of their liberty. A prisoner will be exposed to a high concentration of criminals, some violent. A prisoner is more likely than a member of the public to be exposed to violence, physical, sexual and racial abuse. The possibility of such violence or abuse is not by itself a sufficient ground to refuse surrender-. 94 The independent reports provided with Mr Rivera's representations identify real and significant concerns about the abuse of inmates in United States correctional facilities. They establish that United States prisoners are at risk of physical and sexual abuse from other inmates and prison guards. 95. While the reports on United States prison conditions indicate there are problems within prisons, the Department's view is that the reports do not establish that the conditions are such as to be regarded as cruel or inhumane or to involve degrading treatment or punishment. 96. Some prisoners in the United States prison system are infected with HIV and hepatitis C. There is a risk that Mr Rivera will be infected with one or both of these diseases if he is incarcerated in the Californian prison system. The Centre for Disease Control's report estimates that 2.0% of the United States prison population is infected with HIV. No figures are readily available for hepatitis C infection rates 97 Unlike the extradition treaty with South Africa, which was considered by the Full Federal Court in the de Bruyncase, the extradition treaty between Australia and the United States does not require you to take humanitarian considerations into account. However, in the exercise of your discretion whether to surrender Mr Rivera you may have regard to the risk of Mr Rivera contracting HIV in a Californian prison. In respect of this issue we note that the facts underlying the decision in de Bruynappear to be distinguishable from that of the present case in that the rate of HIV infection in South African prisoners was estimated to be around 45%, which is considerably greater than the estimated infection rate of 2% with respect to prisoners in the United States. 98. In all the circumstances, we consider that the risk of Mr Rivera contracting HIV in a Californian prison is low and therefore it is open to you to determine that Mr Rivera should be surrendered to the United States.' 162 There is no ground for judicial review established in relation to these issues. Unless the Minister had failed to pay regard to factors which must bear upon the exercise of his discretion, or paid regard to matters which must not affect it, the weight to be given to particular aspects, and the overall decision, is a matter for the Minister, not the Court. Ground 5 of the appeal should be rejected. Bad faith 163 Ground 6 of the appeal suggests that the primary judge should have concluded that the extradition request by the USA was made in bad faith. Mr Rivera's arguments invited an assessment of the strength of the case against him on the charge which he faces. His approach to this issue was misconceived. It was not any part of the role of the primary judge, nor the Minister, to attempt any evaluation of the evidentiary case against Mr Rivera arising from the explanation provided by the USA of the reason it sought his extradition. This ground of appeal is unsustainable and must be rejected.

Bias and natural justice 164 Grounds of appeal 8 and 10 suggest errors on the part of the primary judge for not finding bias and a lack of natural justice on the part of the Minister. No cogent argument was made, to support either of these grounds. Mr Rivera has taken advantage at every level, of his opportunity to advance copious amounts of material and arguments, all of which appear to have been comprehensively considered. These grounds of appeal should be rejected. Overall result, unreasonableness, relevance 165 Grounds of appeal 4, 7 and 9 make further general challenges to the judgment under appeal. They suggest the primary judge erred in his assessment of 'the whole of the evidence and international law' that his judgment was 'unreasonable' and that it failed to proceed on relevant, and only relevant, considerations. These suggestions are formulaic in character. They were not supported by any cogent argument. These grounds must also be rejected.

Constitutional invalidity 166 Mr Rivera contended that s 22 was invalid. The primary judge recorded that such an argument was advanced to him in written submissions but not orally. He inferred it had been abandoned and did not deal with it. On the appeal the argument was pressed in writing and orally. 167 Mr Rivera did not clearly articulate, in either medium, a legal foundation for his contention. Such an argument must be based upon the premise that the Australian Parliament lacks power to enact s 22. Mr Rivera was not able to explain why any such proposition should be entertained. I take the view the point has no apparent substance. Ground 11 of the appeal should be rejected.

Conclusion 168 Each of Mr Rivera's grounds of appeal must be rejected. No error has been shown in the judgment of the primary judge. No failure by the Minister to comply with the statutory provisions which bear upon the decision whether Mr Rivera should be surrendered to the USA, as it has requested, has been revealed. There is no basis for any form of judicial restraint of the Minister's decision. 169 I agree that the appeal should be dismissed with costs.

I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Solicitor for the Appellant: Australian Government Solicitor

Solicitor for the Respondent: Attorney-General's Department

Extradition Act 1988(Cth)ss 7, 12, 19, 22, 23, 190

United States of America, Art III, Amendment X Extradition (United States of America) Regulations 1992(Cth)r 3

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